IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Bobbi Rose, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0354

Commissioner of Social : JUDGE EDMUND A. SARGUS, JR.

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Bobbi Rose, the widow of Edward Eugene Rose,

filed this action seeking review of a decision of the

Commissioner of Social Security denying Mr. Rose’s application

for supplemental security income. That application was filed on

April 9, 2008, and alleged that Mr. Rose became disabled on March

1, 2008. Because Mr. Rose is no longer a party to the case, but

he is the one who originally filed the claim for benefits, he

will be referred to in this Report and Recommendation as

“claimant.”

After initial administrative denials of his application, Mr.

Rose was given a hearing before an Administrative Law Judge on

December 2, 2010. In a decision dated January 5, 2011, the ALJ

denied benefits. That became the Commissioner’s final decision

on March 5, 2012, when the Appeals Council denied review. 

After Mr. Rose filed this case, the Commissioner filed the

administrative record on July 19, 2012. Plaintiff was then

substituted as a party because Mr. Rose had passed away.

Plaintiff filed her statement of specific errors on September 12,

2012. The Commissioner filed a response on December 14, 2012. 

No reply brief has been filed, and the case is now ready to

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decide.

II. Claimant’s Testimony at the Administrative Hearing

 Claimant, who was 48 years old at the time of the

administrative hearing and who has a tenth grade education,

testified as follows. His testimony appears at pages 16-37 of

the administrative record.

Claimant could not recall when he last worked. The last job

or jobs he held involved picking up trash or doing security-type

work at a horse stable. He denied any recent work as a horse

trainer despite the fact that such information appeared in some

medical records. He also denied recent illegal drug use

although, again, evidence of such use appeared in medical

records.

In response to questions from his attorney, claimant stated

that he could not read or write. He could also not count change. 

He had worked as a tow truck driver in the late 1990s, but never

mastered the paperwork requirements for that job. He had five

knee surgeries and his knee condition made it hard for him to

walk even short distances. He could not stand for more than

three or four minutes at a time. His knees gave out and he

collapsed several times a week. 

Claimant also testified to wrist problems. He broke his

left wrist in a fall and has had multiple surgeries on it, with

hardware insertion and fusion. He also broke his foot in a fall

and needed surgery to repair it. Additionally, he experienced

ongoing pain from an old neck injury which caused migraine

headaches and pain in his right arm. He could not pick up small

objects with his right hand. Also, he had constant back pain

which affected his ability to sit for more than a few minutes.

From a psychological standpoint, claimant testified that he

heard voices daily and also had issues with anger. Medication

did not help. He also had a poor memory and found it difficult

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to be around other people. 

Finally, claimant testified that he slept poorly and left

his home about once a week. He did no housework and attempted to

rest during the day. He would alternate positions frequently

during the day to try to relieve his pain.

III. The Medical Records

The medical records in this case are found beginning on page

281 of the administrative record. The pertinent records can be

summarized as follows.

Claimant broke a bone in his lower arm in 2007. He had

surgery and wore a cast or a splint for some time afterwards. 

The cause of the injury, which was to his left arm, was,

according to some records, a fall, but others show it stemmed

from an altercation with the police. Records from the same

emergency room where his fracture was treated show complaints of

chest pain from chest tubes placed by another hospital, and also

some suggestion of prescription medication abuse, although

claimant apparently blamed his wife for using his name to obtain

prescriptions. They also indicate some complaints of neck pain

radiating into his right arm, headaches, and low back pain. 

These complaints all appear to have arisen from a fall from a

horse which claimant was training a year before, which would have

been in 2003. Later records indicate that the wrist was fused in

2008. 

Claimant was evaluated by Dr. Taylor, a clinical

psychologist, in 2007 based on a referral from the Ohio

Department of Job and Family Services. Claimant (or his wife)

reported a prior history of bipolar disorder, anxiety and

depression as well as various physical problems. Claimant said

he last worked in the late 1990s and had not looked for work

since. He reported a history of alcohol abuse. Dr. Taylor

thought claimant looked sad, withdrawn and tearful, and older

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than his stated age. She diagnosed him with severe bipolar

disorder and a prior history of alcohol abuse, and rated his GAF

at 50. She thought he was unemployable due to psychological

issues and rated him as markedly limited in several areas of

functioning, including maintaining attention for extended

periods, completing a workday or work week without interruption

from psychologically-based symptoms, and responding to changes in

the work setting. (Tr. 321-29).

Claimant sought treatment from an emergency room in March,

2008 after suffering what he described as a nervous breakdown. 

At that time, he reported current alcohol use and past cocaine

use. He was diagnosed with a major depressive disorder of

moderate severity and his GAF was rated at 41. He was admitted

to the hospital and discharged four days later, by which time his

GAF rating had improved to 60. Earlier emergency room records

show that he was treated in June, 2007 for an overdose of pills

and alcohol. His diagnoses at that time were substance-induced

mood disorder, polysubstance abuse, and personality disorder, and

his GAF was rated at 51. 

Claimant was evaluated by Dr. Tanley, a clinical

psychologist and neuropsychologist, on August 25, 2008. At that

time, he was separated from his wife and living with his parents. 

He described his daily activities as consisting of watching

television. Mental status testing suggested that claimant’s

functioning was in the mentally retarded range, but such a

diagnosis required other corroboration. Claimant seemed able to

relate to others and to understand simple instructions. He was

moderately impaired in his ability to concentrate and in

persistence and pace, and the same was true with respect to his

ability to withstand the stress and pressure of work activity. 

Dr. Tanley diagnosed a depressive disorder and rated claimant’s

GAF at 60. (Tr. 542-44).

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Dr. Shapiro, a state agency reviewer, completed a mental

residual functional capacity evaluation form on October 16, 2008. 

He thought that claimant had a number of moderate limitations

resulting from his psychological impairments, including in the

areas of maintaining attention and concentration for extended

periods, staying on schedule, and working closely with others. 

Dr. Shapiro also saw limits on dealing with work stress,

responding appropriately to supervision, and working without

interruption from psychologically-based symptoms. Dr. Shapiro

commented that he gave the most weight to Dr. Tanley’s assessment

and that claimant could do some simple and even some complex

tasks as long as his contact with others was superficial and the

job did not have strict time or production demands. (Tr. 580-

82).

Dr. Thomas, also a state agency reviewer, expressed an

opinion as to claimant’s physical residual functional capacity. 

Dr. Thomas thought claimant could do essentially light work with

some limits on his ability to reach and handle, and with no

climbing of ropes, ladders or scaffolds or exposure to hazardous

machinery or unprotected heights. (Tr. 598-605).

On October 29, 2009, claimant was seen by North Central

Mental Health Services by way of a referral from Netcare. He

described a history of mood swings, hallucinations, and paranoia. 

At that time, the principal diagnoses (stated by a counselor and

not a psychologist or psychiatrist) were schizoaffective

disorder, bipolar type, PTSD, panic disorder, and claustrophobia. 

His GAF was rated at 45. When he was seen again on December 21,

2009, by Dr. Agabalyan, he reported anxiety, difficulty sleeping,

paranoia, hearing voices, and depression. He appeared anxious

and jittery. Dr. Agabalyan’s impression was depressive and

anxiety disorders, and claimant’s GAF was rated at 51. His

medications were changed and he was to be seen again in a month. 

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(Tr. 804-13).

The remaining records show that claimant had another left

wrist surgery in 2009, had surgery on a broken left foot, and was

treated for low back pain and neck pain. He reported to his back

doctor that he was working and was getting relief from

medications, which allowed him to perform normal home activities. 

Another note indicated, however, that he had not worked in four

years. 

 IV. The Vocational Testimony

A vocational expert, Dr. Robinson, also testified at the

administrative hearing. Her testimony begins at page 38 of the

record. 

Dr. Robinson was asked to assume that claimant could perform

a limited range of light work, with restrictions on his ability

to reach and handle with his left arm and an inability to climb

ropes, ladders or scaffolds or work around unprotected heights. 

She was also asked to assume that he could understand, remember

and carry out simple and some complex tasks and instructions,

could maintain concentration and attention for two-hour segments

in an eight-hour day, could respond appropriately to supervisors

and co-workers and have casual and infrequent contact with others

in the workplace, could adapt to simple changes and avoid

hazards, and would need to avoid work which had strict production

demands. With those restrictions, that person could, in Dr.

Robinson’s view, perform certain unskilled jobs such as garment

sorter, inspector or marker. However, someone who would need to

take up to 25 unscheduled breaks during the workday could not do

those or any other jobs.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 76

through 94 of the administrative record. The important findings

in that decision are as follows.

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The Administrative Law Judge found, first, that claimant had

not engaged in substantial gainful activity from his application

date of April 9, 2008 through the date of the decision. As far

as claimant’s impairments are concerned, the ALJ found that

claimant had severe impairments including degenerative disc

disease of the cervical spine, status post right ACL

reconstruction procedure and left partial medial meniscectomy

procedures, status post fractures of the second, third and fourth

metatarsals of the left foot, status post left wrist fusion

procedure, and a depressive disorder not otherwise specified. 

The ALJ also found that these impairments did not, at any time,

meet or equal the requirements of any section of the Listing of

Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that claimant had the residual functional

capacity to perform a range of light work with restrictions on

his ability to reach and handle with his left arm and an

inability to climb ropes, ladders or scaffolds or work around

unprotected heights, and that he could understand, remember and

carry out simple tasks and instructions, could maintain

concentration and attention for two-hour segments in an eighthour day, could respond appropriately to supervisors and coworkers in a task-oriented setting where contact with others is

casual and infrequent, and could adapt to simple changes and

avoid hazards in a setting without strict production standards. 

The ALJ found that, with these restrictions, claimant could

perform those jobs identified by the vocational expert, such as

garment sorter, inspector and marker, and that significant

numbers of such jobs existed in the statewide and national

economies. Consequently, the ALJ concluded that claimant was not

entitled to benefits.

VI. Plaintiff’s Statement of Specific Errors

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 In her statement of specific errors, plaintiff raises three

issues. She argues that the ALJ improperly evaluated both the

claimant’s mental and physical residual functional capacities and

that he did not judge claimant’s credibility correctly. The

Court generally reviews the administrative decision of a Social

Security ALJ under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

There are no treating source opinions in this case. As is

apparent from the Court’s summary of the medical evidence, there

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are also no opinions from any source which support any finding of

physical limitations beyond the ones which the ALJ found, and

there is only one opinion - that of Dr. Taylor - which would

support a finding of a disabling psychological impairment. 

Consequently, plaintiff’s argument is not that the ALJ improperly

weighed the opinion evidence; it is that the ALJ improperly

weighed the underlying medical evidence. In particular,

plaintiff faults the ALJ for:

1. Not correctly factoring into his analysis the evidence

concerning claimant’s left foot fracture;

2. Committing the same type of error with respect to his

left wrist condition, which required surgeries through early

2010;

3. Disregarding the combination of the IQ scores obtained

by Dr. Tanley and claimant’s school records (and therefore

failing to find that claimant met the requirements of Listing

12.05(C));

4. Failing to find that claimant was illiterate as opposed

to having a limited education; and

5. Failing to apply the Medical-Vocational Guidelines

properly, because had the ALJ found that claimant was limited by

his foot fracture to sedentary work and that he was illiterate,

the Guidelines would have directed a finding of “disabled.”

According to plaintiff, all of these errors were compounded by

the ALJ’s erroneous view of the claimant’s credibility, which,

plaintiff argues, was based upon records which were either

clearly incorrect or which contained misstatements made by the

claimant due to his poor recall and low IQ. The Court will

discuss each of these issues in turn.

A. The Left Foot Fracture

Claimant broke his left foot in 2009. There is no question

that this impairment did not exist when Dr. Thomas, the state

agency reviewer, expressed the opinion that claimant could do a

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limited range of light work, with six hours of daily standing or

walking. The question is whether the ALJ reasonably decided that

the subsequent foot fracture had no effect on claimant’s physical

functional capacity.

As the Commissioner correctly notes, the surgery to repair

the fracture appears to have been successful, and there is no

evidence that claimant needed any assistive devices even for the

time period right after the fracture and surgery. It is clear

that whatever impact the fracture had on claimant’s ability to

stand or walk was temporary in nature; in his testimony, claimant

did not identify any permanent impact from the fracture, and the

administrative hearing took place only a little over a year after

claimant broke his foot.

To prove disability, a claimant must show that he is unable

to engage in substantial gainful activity by an impairment (or

combination of impairments) which has lasted or is expected to

last for a continuous period of not less than twelve months. See

42 U.S.C. §423(d)(1)(A). There is no evidence in this record

that the foot fracture had any impact on claimant’s residual

functional capacity for a period as long as twelve months. 

Consequently, even if it reduced the claimant’s functional

capacity to sedentary work for a period of time, that time period

was too short to have supported an award of benefits. Other

courts have similarly discounted claims based on only the

temporary inability to work. See, e.g., Zamora v. Astrue, 853

F.Supp. 2d 1048 (D. Or. 2011); see also Bartyzel v. Comm’r, 74

Fed. Appx. 515, 524 (6th Cir. August 26, 2003)(“it is reasonable

to find that ‘temporary’ disability will not satisfy the

twelve-month statutory durational requirement”). Therefore, it

was not unreasonable for the ALJ to find that claimant’s residual

functional capacity, as assessed by Dr. Thomas, was unaffected by

the foot fracture which claimant suffered in 2009.

 B. The Left Wrist Condition

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Much the same analysis applies to the way in which the ALJ

evaluated claimant’s problems with his left wrist. The medical

records show ongoing treatment based upon an initial misunion of

the bones, followed by several surgeries to fuse the wrist and

implant hardware. Because the medical records which Dr. Taylor

reviewed show that the issue was ongoing, she restricted claimant

with respect to the use of his left hand, as did the ALJ. The

subsequent records do not show any greater functional

limitations. The Court finds no error in the way in which this

impairment was analyzed by the ALJ.

C. Listing 12.05(C)

Section 12.05(C) of the Listing of Impairments requires a

finding of disability when a claimant suffers from mental

retardation, as evidenced by an IQ score of 60-70, and also has

one or more other severe impairments. There is no question that

the IQ test administered by Dr. Tanley produced a qualifying

score. Rather, the issue is whether the ALJ reasonably found

that the remaining requirements of the Listing had not been met.

One of those requirements is that deficits in adaptive

functioning manifest themselves prior to age 22. 

Here, plaintiff faults the ALJ for ignoring the IQ scores

reported by Dr. Tanley. However, the ALJ’s decision specifically

refers to those scores and notes that they are “consistent with

mental retardation.” (Tr. 79). In discussing the Listing, the

ALJ determined that claimant did not show the required level of

deficits in adaptive functioning, noting that he was not in

special education classes, did not repeat any grades in school,

and that he could read and write. The ALJ also cited to school

records showing that claimant was reading at a fourth grade level

at the age of 11. Although the records cited by the ALJ are

somewhat hard to read, plaintiff has not argued that this factual

statement is incorrect.

Again, as the Commissioner correctly notes, it is the

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claimant’s burden to demonstrate that all of the requirements of

a particular Listing have been met. See, e.g., Daniels v.

Comm’r, 70 Fed. Appx. 868, 873 (6th Cir. July 30, 2003)(upholding

a denial of benefits where “Plaintiff has not provided any

evidence, as required, that her mental deficiency initially

manifested before age 22"). The only evidence plaintiff cites is

the report card from the claimant’s final year of schooling,

during which he did not perform well academically. Beyond that,

there is little, if any, evidence which would support the

existence of deficits in adaptive functioning prior to age 22,

and the record also contains evidence from psychologists

indicating that the claimant could, despite his low IQ scores,

perform both simple and even some complex tasks; Dr. Tanley, who

administered the tests, concluded that the claimant was “capable

of comprehending and completing simple, routine ADL [activities

of daily living] tasks both at home and in the community.” (Tr.

544). Given the state of the record, it was reasonable for the

ALJ to conclude that claimant did not prove that he met the

requirements of Section 12.05(C).

D. Limited Education or Illiteracy

Plaintiff argues, again based on the results of testing

administered by Dr. Tanley, that claimant was illiterate, as

opposed to functioning at a seventh to eleventh grade level,

which reflects the extent of his formal schooling. However, this

argument is coupled with the contention that the claimant could

work only at the sedentary level. Under the Medical-Vocational

Guidelines, Rule 202.16, a younger individual who is illiterate

and who can do only unskilled jobs is deemed not disabled. The

Court has found no error in the ALJ’s determination that claimant

could do a limited range of light work. Therefore, any error as

to the ALJ’s assessment of claimant’s level of education is

harmless.

 E. Credibility

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Plaintiff’s final contention is that the ALJ did not

properly assess the claimant’s credibility. She makes much of

the fact that he may not have reported his work history properly

due to mental limitations and, in any event, any work he might

have done was in the nature of a failed work attempt, so that the

differing versions of whether he was or was not working should

not have led the ALJ to doubt the credibility of his testimony

about disabling symptoms.

An ALJ is not permitted to reject allegations of disabling

symptoms, including pain, solely because objective medical

evidence is lacking. Rather, the ALJ must consider other

evidence, including the claimant's daily activities, the

duration, frequency, and intensity of the symptoms, precipitating

and aggravating factors, medication (including side effects),

treatment or therapy, and any other pertinent factors. 20 C.F.R.

§404.1529(c)(3). Although the ALJ is given wide latitude to make

determinations about a claimant’s credibility, the ALJ is still

required to provide an explanation of the reasons why a claimant

is not considered to be entirely credible, and the Court may

overturn the ALJ’s credibility determination if the reasons given

do not have substantial support in the record. See, e.g.

Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994).

Here, the ALJ found the claimant not to be particularly

credible. That finding was both explained adequately in the

record and supported by the record. The inconsistencies in how

claimant explained his work situation, which are replete in the

record, might not be direct evidence that he was able to work,

but they are proper matters for an ALJ to consider when deciding

how much weight to give to the claimant’s testimony. Other

inconsistencies, particularly concerning the claimant’s use of

tobacco, alcohol, narcotic pain medications, and street drugs,

were noted by the ALJ and also find support in the record. 

Claimant was also noted to be a poor historian by many of the

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doctors who treated him. Given these reasons for discounting his

testimony, and given the substantial support elsewhere in the

record for the ALJ’s assessment of the claimant’s physical and

mental capabilities, the Court concludes that the ALJ reasonably

determined not to give full credit to the claimant’s testimony

about disabling symptoms. Thus, the Court finds no error with

respect to any of the issues which plaintiff has raised.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors (Doc. 15) be overruled and that

judgment be entered in favor of the Defendant Commissioner of

Social Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection

is made, together with supporting authority for the objection(s). 

A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

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/s/ Terence P. Kemp 

 United States Magistrate Judge

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